144 Ill. App. 38 | Ill. App. Ct. | 1908
delivered the opinion of the court.
The argument of the appellant (defendant) in this case that there was no evidence in the cause sufficient to sustain a finding of the jury that the injuries from which Mr. Wilkinson died were effected through accidental means, is subtle rather than forceful. Reduced to its lowest terms, it is tantamount to the position that evidence to be sufficient must be direct. But circumstantial evidence is frequently as satisfactory and not infrequently more satisfactory than direct evidence to establish the existence or occurrence of any fact, and in accordance with this hypothesis all the affairs of men are conducted. “Presumptions on presumptions,” “mere conjectures,” “simple speculations,” and like expressions, are used by courts to show what a jury may not indulge in, but no court has said, in a case like this, where no living witness can be produced to testify directly to the happening of an accident, that happening cannot be inferred by a jury from other facts viewed in connection.
A man in good health and spirits is accustomed to work with straw in his barn loft and smoke the while. He has been engaged on a piece of such work, which was unfinished on a certain day. He is seen on that day to go to the barn loft, remain some time, come to the house on a trivial errand and return to the barn with a half smoked cigar in his mouth. After an hour or so, in which nobody sees him come from the barn, although there are people in the rear of the house, there is an alarm of fire; the bam loft is broken into by firemen, the straw and the wood work are on fire, the flames and smoke are overpowering, and the man is found unconscious and burned so severely that he dies from the effects. What inference from any facts could be more inevitable for any court or jury disposed to look at plain facts in a common sense way, than that the burns which the man had suffered were “effected through accidental means,” or else were “intentionally self-inflicted I” There is no third hypothesis conceivable except through a refinement of distinctions not consistent with the ordinary processes of reasoning.
To argue that the acts of the insured which led to the fire may be considered intentional and voluntary, but the result unintentional, and that therefore the injuries, although accidental, were not '‘ effected through accidental means,” is, under the circumstances of this case, to propose a fantastic if not unthinkable theory. It can only mean that it may be supposed that the insured consciously and voluntarily meant to wrap himself in smoke and flame from fiercely’ burning material, and yet not be injured. It is a very different case from that of a person who takes a poisonous drug voluntarily in a quantity which he intends, but misjudges the effect of the dose, and thus kills or injures himself, when his purpose was the exact opposite. In such a case cited by the appellant (Carnes v. Iowa State Traveling Men’s Association, 106 la. 281), a distinction between “accidental” and “effected by accidental means” was made, but there cannot reasonably be such a distinction made in the case at bar.
It is conceded by the appellant that “the law presumes in the absence of evidence to the contrary, that the injuries sustained by John Wilkinson were not self-inflicted” (defendant’s instruction 22), but insists that this presumption has no probative force to establish the fact that the injuries were effected by accidental means. Under the facts and circumstances proven in this case, this last proposition is practically equivalent to denying the first. It is simply to repudiate the presumption against intentionally self-inflicted injuries. There being in reason but two alternatives, a presumption against one must at least aid and form a part of the proof of the other.
It is this that distinguishes this case from such a one as The Globe Insurance Company v. Gerisch, 163 Ill. 625, relied on by appellant. In that case, to sustain a verdict, it had to be presumed or inferred that the deceased lifted a heavy box of ashes, and then presumed or inferred that a strain from which he afterward suffered was the result of that lifting. Perhaps either inference singly might have been properly made had the other been a matter proved, hut the sequence could plainly not be. There were an infinity of causes that might have caused the strain, other than the one which, as the court says, was in itself “but a presumption drawn from other facts in evidence,” namely, that the insured had lifted the box of ashes. We fail to see an analogy in the G-erisch case to the one at bar.
On the other hand, the authorities are many and forceful which declare that in a case like the present, circumstantial evidence concerning the death or injury, without proof of the precise manner in which it occurred, aided by the presumption against suicide or self-infliction of injuries, sufficiently satisfies the requirement, which is undoubtedly the general rule as dwelt upon by the appellant, that the claimant under an accident insurance policy must prove that the death or injury occurred through accidental means.. And it has often been further held that external and violent means having been proven, the presumption against self-inflicted injuries and against murder, without further evidence, involves a prima facie showing of “accidental means.” Travelers Ins. Co. v. McConkey, 127 U. S. 661; Mallory v. Travelers Ins. Co., 47 N. Y. 52; Fidelity & Casualty Company v. Freeman, 109 Fed. R. 847; Ætna Life Ins. Co. v. Milward, 118 Ky. 716; Cronkhite v. Travelers Ins. Co., 75 Wis. 116; Lumpkin v. Insurance Co., 11 Colo. App. 249; Preferred Accident Ins. Co. v. Fielding, 35 Colo. 19; Warner v. Accidental Association, 8 Utah, 431; Jones v. U. S. Accident Association, 92 Ia. 652; Conadeau v. American Accident Company, 95 Ky. 280; Travelers Ins. Co. v. Sheppard, 85 Ga. 751; Insurance Co. v. Bennett, 90 Tenn. 256; Standard Life & Accident Ins. Co. v. Thornton, 100 Fed. R. 582; Jenkin v. Pacific Mutual Life Ins. Co., 131 Cal. 121; Meadows v. Pacific Mutual Life Ins. Co., 129 Mo. 76; Fidelity & Casualty Co. v. Weise, 182 Ill. 496.
In our examination of these cases, we have given due consideration to the argument of the appellant that in some the language which sustains the position we have indicated must be considered obiter dictum, and in some the result of a misinterpretation of the early case of Mallory v. The Travelers Ins. Co., 47 N. Y. 52, and that some of the cases we have named sustain the position of the defendant and not that of the plaintiff, while others are radically unsound. But we are not convinced by it. It seems to us that the general concensus of opinion in these authorities, whether the theory was directly involved or not, and whether the given case went off on it or not, is expressed, for a case like this, by the Circuit Court of Appeals of the United States for the Sixth Circuit, when it says:
“The death under such circumstances was by violent and external means, and the facts exclude every hypothesis except suicide or accident;” and then, speaking of the presumption against suicide, declares:
“This presumption must stand in the case and be decisive of it until overcome by testimony which shall outweigh the presumption” (Standard Life & Accident Ins. Co. v. Thornton, 100 F. R. 582); and by the Supreme Court of California when it says:
“That the courts will presume that the death was the result of an accident when nothing more is shown than that it was brought about by a violent injury, and the character of such injury is consistent with the theory of accident, seems to be a rule upheld by a great weight of authority;” and “If the circumstances placed in evidence and the inferences to be drawn therefrom and the presumptions arising thereon point clearly to an accidental injury, the plaintiff has made out a prima facie case and is entitled to a finding in his favor.” Jenkin v. Pacific Mutual Life Ins. Co., 131 Cal. 121.
Moreover, we think that this theory, instead of being “radically unsound,” as the defendant claims, is consistent with right, reason and common sense, and was sanctioned by our Supreme Court in a case relied on by the defendant, but which in fact was decided on the question on whom the burden of proof was cast, not on the question of what would sustain that burden. In Fidelity & Casualty Co. v. Weise, 182 Ill. 496, the Supreme Court said: “The presumption of the law is that all men are sane and possessed of the love of life, are animated by the instincts of self-preservation and a natural desire to avoid injury and death. This presumption, in the absence of countervailing proof, may be sufficient in itself to establish that the death occurred otherwise than by self-inflicted injuries, and to cast upon the defendant company the burden of producing evidence on the point.”
We do not see how the pertinency of this doctrine regarding the probative force of the presumption against self-inflicted injuries is affected in the present case, where there was no “countervailing proof,” by the fact that in the Weise case there was strong countervailing evidence, the production of which left the burden of proof still on the plaintiff and called from the court the further statement that “the existence of the presumption” (against suicide) “had no efficacy to change the rule that the obligation of proving any fact lies upon the party who asserts the affirmative of the issue. In North Chicago Street Railway Co. v. Louis, 138 Ill. 9, we said: ‘There may be evidence which, standing by itself, establishes a certain state of facts, but the evidence does not preponderate in favor of any given state of facts unless it is sufficient to outweigh all testimony introduced in opposition thereto.’ ”
In the case at bar not only was there no evidence offered tending, in the slightest degree, to establish or suggest suicide or self-inflicted injuries, but moreover, in the exercise of a discretion undoubtedly vested in him (Dimick v. Downs, 82 Ill. 570-2; Mayer v. Brensinger, 180 Ill. 110-120), and in view of the pleas filed by defendant, the trial judge allowed the plaintiff to anticipate the suggested defense, and produce evidence in her case in chief, which aided and fortified the presumption against suicide or self-inflicted injuries, by showing a disposition, a temperament, a character, a physical condition and habits on the part of the deceased tending strongly to negative the probability of any self-infliction of the injuries in question.
The injuries, the defendant concedes in its reply brief, “doubtless unintentionally resulted in the death of the insured.” It proceeds, nevertheless, to hint that the surroundings proved by the plaintiff looked toward self-inflicted injuries. The suggestion is without force in view of the evidence. It is so improbable as to be fantastic.
The views we have expressed dispose for us, not only of the contention of defendant that evidence is wanting to sustain a verdict for the plaintiff, and that the weight of the evidence is against any liability on the part of defendant, and of certain of its claims regarding the admission of improper evidence, but also of its criticism on the first instruction given at the request of the plaintiff.
We do not think this instruction was erroneous. If, as claimed by the defendant, the twenty-second instruction asked by the defendant and given, was inconsistent with it, which we do not feel called on to discuss, giving the twenty-second as asked was an error committed at the request of defendant, of which it cannot complain.
We are therefore brought to the secondary contentions of defendant in the case—that the “double” liability under policy number 729605 was not sustained by the evidence, that the weight of the evidence was against the verdict which asserted it, and that the refusal of certain instructions which were requested by the defendant concerning it, was erroneous.
Our examination of the questions involved in these contentions leaves us satisfied with the action of the jury and of the trial judge.
The provision involved is a peculiar one. It provides the double” indemnity for various selected accidents, certainly not more likely to occur than many others, and may well be supposed to be inserted as an additional attraction for the policy in its involving an extraordinary element of chance. Counsel for defendant, perhaps justifiably, repudiate the suggestion that the interpretation that would naturally be placed upon the term “building” in the condition under discussion by the persons to whom policies are sold, as including as well the “contents” of such building, should be controlling, although the illustration used by the plaintiff of “theatre” and “hotel” fires, “fires,” that is, within the modern fire proof buildings, is not without force.
But we do not need to discuss this question, for we find nothing in the record which justifies the assertion of counsel for defendant, in the “Reply Brief,” that the trial court was not able or willing to appreciate the difference between “the burning of a building” and “the burning of straw within a building.”
In our opinion the question whether these injuries, resulting in the death of Wilkinson, were within the special provision of the policy, that is, “were sustained by external, violent and accidental means, in consequence of the burning of a building in which the insured was at the commencement of the fire,” was for the jury to determine from the evidence.
We have given the evidence bearing on the question in detail in the statement. prefixed to this opinion. Discussion or further analysis of it would not make it clearer. We think that it would justify the finding of any court or jury that the injuries which resulted in the death of the insured were received wholly or partly after and “in consequence of” the ignition of the woodwork of the building and the heat and flame thereby produced, and not solely from the burning on the floor of the by no means profuse amount of straw, in which the fire very probably begun, perhaps from a lighted cigar of the deceased.
It was not necessary for the jury to determine or to find in what precise manner the fire began or how it proceeded or in what precise manner the deceased received each of the bums which together resulted in his death.
As the court said in Wright v. Sun Mutual Life Insurance Co., 29 Upper Canada Common Pleas, 221-233, “a. large proportion of accidental deaths occur under such circumstances that evidence is wanting as to the precise manner in which the deceased met his fate. Where the visible injuries plainly account for death, it can hardly be necessary to explain step by step how it happened.”
But the jury, while not allowed to base findings necessary to their verdict on mere conjecture or speculation, or to make inferences necessary to those findings not fairly and reasonably dedueible from facts in evidence, were not required, in considering what their findings should be, to exclude altogether. from their minds the fact that there were numerous methods by which in pure accident and involuntarily the fire might have started.
That Mr. Wilkinson was in the loft when the fire commenced was, in our opinion, fairly dedueible from the evidence. We should not have expected from any jury any other finding from the facts in evidence. That the injuries from which he died were the result wholly, or in material part, of the burning of the building, in contradistinction from its mere contents even, we also think a legitimate inference from the proof.
The evidence, which was admitted over objection, tending to establish these propositions, we think competent.
This leaves only the question—was there reversible error in the refusal of any of the refused instructions tendered by the defendant? We think there was not.
Three strenuously insisted on—the 2nd, 10th and 11th—were objectionable, under the rule in Illinois, in singling out and calling attention to specific features of the evidence which as a whole were submitted to the jury. They were intended to call attention to the evidence of the burning of straw in the building as distinguished from everything else shown to have been aflame.
The proposition that the double benefit depended on the injuries resulting from the burning of a building was covered by the 14th, 15th and 23rd given instructions. There was no error in refusing to repeat it in the further form asked, that their resulting solely from the burning of something else would not satisfy the requirements of the policy. The defendant’s argument on this point seems in the last analysis to be based on the position that the term “building,” as used in the policy and the instructions was ambiguous in that it might or might not include a building’s contents. If there were no ambiguity in its use in the policy, there was none in the instructions given, and the further instructions refused on the same point were not needed. If there was ambiguity, then the ambiguity must be resolved according to “fully established,” “imperative” and “controlling” rules, in favor of the insured, “so as not to defeat his claim to the indemnity which in making the insurance it was his object to secure.” Healey v. Mutual Accident Assn., 133 Ill. 556-561.
If there was ambiguity, therefore, the instruction refused would have been erroneous.
The first refused instruction was also covered by the 14th, 15th and 23rd, as given.
Counsel for defendant say in their argument that it was essential that the expression “in consequence of” should be defined in more common and easily understood words. We know of none. Nor, in our opinion, did the evidence sustain the possible hypothesis included in the instruction, that the building did not burn until after Mr. Wilkinson was taken out.
The third refused instruction, so far as it was correct, was amply covered by those given. It was, in the form tendered, likely to mislead the jury in the direction pointed out in this opinion as indicated by the trend of the appellant’s argument here—that is, into a confusion between mere conjectures and speculations on the one hand, and legitimate inferences from facts in proof on the other; in other words, between mere assumptions and circumstantial evidence.
The seventh refused instruction is plainly objectionable. In our opinion the assertion that there was no evidence in this case as to when the fire was started, is incorrect. There was evidence in the time of the alarm and the extent to which the fire had gone when the firemen arrived, from which the jury could legitimately infer approximately the time when it began.
The eighth refused instruction is objectionable because it contained an assumption that there was no evidence as to when the fire in question started. This was inaccurate, as we have pointed out in referring to the seventh instruction. If the assumption were not intended, the instruction was carelessly drafted. Many cases have been reversed by the Supreme Court on account of instructions no more clearly assuming a fact in dispute.
But if the instruction were to be construed as meaning that if the jury could not find from the evidence that the deceased entered the barn before the commencement of the fire, they could not otherwise infer it and give the double benefit provided for in the policy, it was abundantly covered by instructions given.
The objections to the refusal of the five other proffered instructions have been waived by not arguing them in this court.
We find no lack of evidence to sustain the verdict and no reversible error in the matter of instructions or in the rulings on evidence. We beliéve that justice has been done between the plaintiff and defendant, and the judgment of the Superior Court is affirmed.
Affirmed.